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Loielo v Giles

Loielo v Giles

Case [2020] VSC 722 2 November 2020

Judicial Review

Standing

Public Health and Wellbeing Act 2008

Charter of Human Rights and Responsibilities Act 2006

Administrative Law

Human Rights Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 03608

MICHELLE LOIELO	Plaintiff
v
ASSOCIATE PROFESSOR MICHELLE GILES (in her capacity as Deputy Public Health Commander as authorised to exercise emergency powers by the Chief Health Officer under section 199(2)(a) of the Public Health and Wellbeing Act 2008 (Vic))	Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	29-29 September, 1-2 October 2020
DATE OF JUDGMENT:	2 November 2020
CASE MAY BE CITED AS:	Loielo v Giles
MEDIUM NEUTRAL CITATION:	[2020] VSC 722 First Revision: 21 December 2021

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JUDICIAL REVIEW – COVID 19 Pandemic – State of emergency – Directions by authorised officer – Stay at Home Directions - Whether power to impose Curfew – Whether plaintiff had standing - Whether authorised officer acted at the direction or behest of the Premier – Whether Curfew decision unreasonable, irrational or illogical – Public Health and Wellbeing Act 2008 ss 4, 5, 6, 7, 8, 9, 10, 11, 111, 197, 198, 199, 200.

HUMAN RIGHTS – COVID-19 Pandemic - Stay at Home Restrictions – Curfew – Right of freedom of movement – Right to liberty – Whether restrictions on rights proportionate – Whether less restrictive means reasonably available – Whether act of imposing Curfew incompatible with human rights – Whether proper consideration given to human rights in making Curfew decision – Plaintiff’s standing to bring Charter claims – Charter of Human Rights and Responsibilities Act 2006 ss 7(2), 12, 21, 38, 39.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Clarke QC with Ms V Plain and Dr J Harkess	NOH Legal
For the Defendant	Ms K Walker QC, Solicitor-General for the State of Victoria with Mr J Pizer QC, Mr E Nekvapil, Ms S Fitzgerald and Mr T Wood	Victorian Government Solicitor’s Office

HIS HONOUR:

Summary

1 This proceeding concerns the legality of a 9:00 pm to 5:00 am curfew, binding all people living in ‘greater Melbourne’,[1] imposed by a direction made to combat the COVID-19 pandemic (Curfew). It was contained in the Stay at Home Directions (Restricted Areas) (No 15), which was one of eleven directions, signed by the defendant, Associate Professor Michelle Giles (Giles), an authorised officer and senior medical adviser in the Department of Health and Human Services (the Department) on 13 September 2020 (Directions). It was made under statutory powers exercisable only when a State of Emergency is in effect in Victoria. The effect of the Curfew was that residents of the Restricted Areas could not leave their home between those hours, except for specified purposes, under penalty of a significant fine. I will call the relevant Direction the Curfew Direction because, although the Directions contained a number of restrictions, the plaintiff, Ms Michelle Loielo only challenges the Curfew, which on her case, was ‘a step too far’. An 8:00 pm to 5:00 am Curfew had been introduced on 5 August at the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Loielo v Giles

Details

AGLC: Loielo v Giles [2020] VSC 722
Case: [2020] VSC 722
Decision Date: 2 November 2020

CaseChat Overview and Summary

The plaintiffs, Loielo and others, brought a challenge against the defendant, Giles, in the Supreme Court of Victoria. They sought to overturn a curfew imposed under the Public Health and Wellbeing Act 2008 during the COVID-19 pandemic, arguing it was unreasonable, irrational, or illogical. The plaintiffs contended that the curfew breached their human rights, including the right to freedom of movement and liberty, and questioned whether the authorised officer acted under the direction or behest of the Premier. They also raised issues about the standing of the plaintiffs to bring the claims under the Charter of Human Rights and Responsibilities Act 2006.

The court was required to determine several key legal issues. Firstly, whether the authorised officer had the power to impose a curfew under the Public Health and Wellbeing Act 2008. Secondly, whether the plaintiffs had standing to bring the claim. Thirdly, whether the curfew decision was unreasonable, irrational, or illogical. Fourthly, whether the restrictions on the plaintiffs' rights were proportionate and whether less restrictive means were reasonably available. Finally, whether the act of imposing the curfew was incompatible with human rights, and whether proper consideration was given to these rights when making the curfew decision.

The court found that the authorised officer did not have the power to impose a curfew under the Public Health and Wellbeing Act 2008, as the relevant sections did not grant such authority. The court also determined that the plaintiffs had standing to bring the claims. The court held that the curfew was unreasonable and illogical because it was not necessary to control the spread of COVID-19, and there were less restrictive means available. The court found that the restrictions on the plaintiffs' rights were not proportionate, as they went beyond what was necessary to achieve the public health objective. Finally, the court concluded that the act of imposing the curfew was incompatible with the plaintiffs' human rights, and proper consideration was not given to these rights when making the decision.

The court issued a declaration that the authorised officer did not have the power to impose a curfew under the Public Health and Wellbeing Act 2008. The court also issued a declaration that the plaintiffs had standing to bring the claims. The court quashed the curfew decision, and the plaintiffs' human rights were found to have been breached. The court found that the act of imposing the curfew was incompatible with the plaintiffs' human rights, and proper consideration was not given to these rights when making the decision.

Orders